A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Provides a critical account of the use of state consensus, evaluative interpretation, and the doctrine of the margin of appreciation in the case law of the ECHR

Defends the view that the ECHR rights are absolute rights which must be applied in a principled manner across the 46 European member States

Discuses cases as well as philosophical theories - striking an appropriate balance between the two

A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Description

Recent developments have raised important jurisprudential issues in relation to the interpretation of the European Convention on Human Rights which point to the relationship between the two foundational principles of a supranational human rights system: state sovereignty on one hand and the universality of human rights on the other. This book analyzes the idea that creative interpretation and choice in interpretation amounts, by default, to illegitimate discretion and is used to wave the flag of judicial self-restraint. It balances this against the inconsistency or lack of clarity in the methods used by the Court, most notably the margin of appreciation doctrine, and looks at the criticism often leveled at the Court that its use of the doctrine masks the real basis
for its decisions.

The cases that have been coming before the European Court of Human Rights in recent years pose serious interpretive challenges. Does the right to life under art. 2 ECHR include the right to terminate one's life? Does the right to private life under article 8 ECHR include the right to sleep at night free from airplane noise? Does the right to property under art. 1 Protocol 1 ECHR entitle the former King of Greece to claim compensation for the expropriation of royal property, following a referendum? Do homosexual couples have a right to adopt under art. 8 ECHR? This book argues that how law should be interpreted, and what legal rights individuals have, are important questions of political morality that are both capable, and in need of, principled justification.

A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Table of Contents

1. Autonomous Concepts and Violations of the ECHRThe Emergence of Autonomous ConceptsIndirect or Semantic ViolationA Paradigm of an Autonomous ConceptTheoretical Disagreement and Judicial DiscretionThe International Theorist's ExplanationAutonomous Concepts as DisagreementConclusion2. Truth, Meaning, and InterpretationConceptual Relativism Across Contracting StatesQuine on AnalyticityDavidson on Dualism and Mind-DependenceRadical InterpretationRadical Interpretation and Legal Concepts: Against Conceptualism3. The Semantic Sting and the ECHRThe Nature of DisagreementDisagreement About What?The Semantic Sting at the International LevelInterpretivism and the ECHR4.
Intentionalism and TextualismIntroductionOriginal Intentions in the ECHRThe Text and BeyondEvolution in Beliefs about LawAuthority and Publicity in International Human Rights LawThe Failures of OriginalismConclusion5. Two Concepts of the Margin of AppreciationIntroductionThe Margin of AppreciationThe Substantive Concept of the Margin of AppreciationDeference and the Margin of AppreciationConsensus and Public Morals6. Human Rights, Equality, and AutonomyIntroductionRights and InterestsEgalitarian Theories of Rights: Rawls and DworkinA Liberal Egalitarian Theory of Human Rights for the ECHRThe Hatton case and the Right to Private Life7. Consensus, Deference, and Evolutive
InterpretationIntroductionConsensus and the Moralistic Preferences of the MajorityThe Margin of Appreciation and European IntegrationEvolutive Interpretation: Truth not Consensus8. From Theory to PracticeProtocol 14 and the meaning of a 'significant disadvantage'The Human Rights Act 1998: do they Same Principles Apply?The Integrated Approach: Social and Economic Rights under a Liberal Egalitarian Theory

A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Author Information

George Letsas is Lecturer in Law at University College London

A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Reviews and Awards

"Constituting a profound reflection on the Courts interpreting role, the book [...] both enriches legal theory and provides stimulating reading material for everyone dedicated to the cause of human rights."
--From the foreword by Judge Spielmann

"Dr Letsas's book is as challenging as any theoretical writing about the European Convention on Human Rights in recent years. It starts from a very precise understanding about the nature of human rights and about the role of courts charged with the interpretation of the documents which transform the political idea of human rights into the regime of law. Not every Convention lawyer will find his positions utterly convincing but they all will benefit from absorbing and responding to the thesis he puts forward. This is an attractive and efficiently-written book which straddles the line between theory and practice with some confidence."
--Colin Warbrick, Birmingham Law School

"A powerfully argued, compelling and strikingly original contribution which deserves a central place in contemporary debates about the Convention and human rights in Europe...The author is...to be congratulated not only for producing such a ground-breaking and erudite study, but for opening up a potentially rich and fruitful research agenda to which he and others can contribute for a long time to come."
--Steven Greer, International Journal on Minority and Group Rights 16, 2009